Herbicide Claims Will Cost DuPont $6.5 Million

     (CN) – DuPont can pay $6.5 million to settle tens of thousands of claims related to trees allegedly killed by a banned herbicide, a federal judge ruled.
     In fall 2010, E. I. du Pont de Nemours and Co. introduced Imprelis, a new herbicide designed to kill unwanted weeds without harming nontarget vegetation.
     In July 2011, a class sued DuPont in Wilmington, Del., claiming that Imprelis kills spruce, pines and other evergreens, costing people “millions of dollars” nationwide. By August 2011, at least 17 similar class actions had been filed .
     The Environmental Protection Agency soon investigated and barred DuPont from selling Imprelis.
     Though DuPont initiated its own claim-resolution process in September 2011, lawsuits piled up, alleging fraud, violations of the Consumer Protection Act, and a host of claims under numerous state laws.
     The parties reached a settlement agreement after months of discussions, including mediation with a retired magistrate judge.
     Owners of property on or next to which Imprelis was used from August 2010 to 2011 will be awarded a May 2015 warranty on replacement trees, tree care and maintenance payments, as well as an extra 15 percent for incidental damages. They cannot seek environmental or personal injury damages, however.
     DuPont will also remove damaged trees or pay for their removal.
     Individuals who applied Imprelis to their own property will be reimbursed up to $2,000 for time spent investigating tree damage.
     Finally, DuPont will compensate workers who were paid to apply Imprelis to the property of others prior to September 2011. The applicators may also participate in the Imprelis recall program, but they cannot recover lost profits or damages arising from suits brought against them.
     In addition to all administration expenses, DuPont will pay up to $6.5 million attorneys’ fees and $500,000 in costs, plus $1,500 to property-owning class representatives and $2,500 to commercial class representatives.
     U.S. District Judge Gene E.K. Pratter preliminarily approved the settlement on Feb. 11.
     “At this preliminary stage, there is little disputing that the proposed settlement easily passes the reasonableness test,” Pratter wrote. “The settlement was reached as a result of arms’ length discussions over a period of several months. A considerable amount of preliminary discovery was conducted, including the review of some 500,000 pages of documents DuPont previously submitted to the EPA, the hiring and consultation of several experts, and a deposition of a DuPont product manager. Interim co-lead counsel are experienced litigators, as is more fully discussed in this court’s opinion appointing them to their lead roles in this litigation. The number of opt-outs cannot be assessed at this time, and to the extent there have been lawyers who represent class members and who profess to assure the court that their clients will not participate in the settlement, the presence of those lawyers and their expressions of dissatisfaction do not operate to undermine the court’s confidence in the reasonableness of the negotiated settlement at this juncture. Finally, although detailed discussion of the actual terms of the settlement agreement is more appropriate at the final approval stage, the settlement program appears to reflect a meaningful attempt to make property owners quite close to whole for the damage caused to them.”
     The parties have hired notice expert Katherine Kinsella to design a program for contacting potential class members by mail, online and television.

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